Cigarette Lawsuits: A Threat To Tobacco Firms, And Freedom

March 28, 1991|By Stephen Chapman.

Cigarettes, like sex, rich food and downhill skiing, mean taking serious risks for transitory pleasures. Most Americans, while they don`t see the appeal of sucking on burning leaves, respect the prerogatives of those who do. But a few Americans, including those responsible for a lawsuit now before the Supreme Court, think that if smoking is evil, the freedom to smoke can`t be good.

Rose Cippolone smoked for 42 years before dying of lung cancer in 1984. Before her death, she sued three cigarette makers, arguing that they hadn`t taken enough trouble to let her know she was flirting with the Grim Reaper. Her husband continued the suit, and in 1988 a federal court took the opportunity to impersonate Publishers Clearinghouse, awarding him $400,000 in damages.

After an appeals court reversed that ruling, the Supreme Court agreed this week to settle one of the central issues in dispute: whether cigarette companies can have their pockets emptied by courts for failing to warn adequately, even though they provide the gloomy admonitions mandated by federal law.

The legal bickering shouldn`t obscure two broader issues. One is whether we want courts to overturn decisions made by democratic institutions simply because some people don`t like the outcome of those decisions. The other is whether we want the government to deprive informed citizens of their freedom to take risks. If the Supreme Court makes the tobacco companies liable for smokers` ailments, we will have taken another step toward making our society into a compulsory day-care center for adults, run by nannies in black robes.

Beginning in 1966, every cigarette package and advertisement had to include the statement ``Caution: Cigarette Smoking May Be Dangerous to Your Health,`` which was later changed to the even more ominous ``Warning: The Surgeon General Has Determined That Smoking Is Dangerous to Your Health.``

Since then, if I recall correctly, it has been revised to the simpler ``Smoke and Croak, Fool.``

The Cippolone lawyers say: So what? Congress and the president may think the warning they devised back in 1966 was adequate, but a jury may disagree. And if it disagrees, it should have the right to make the merchants of death pay.

The first flaw in this argument can be found in the statute itself. When Congress passes a law, it`s often vague about whether it wants to prevent the states from passing different laws on the same subject-as it has the power to do. Then courts have to pick through stacks of floor speeches and committee reports to divine something the lawmakers themselves may not have known: what the hell they were trying to do.

In this case, though, Congress made itself very clear, doing its best to handcuff all those tricky lawyers and state legislators with their own agendas. One declared aim of the law was that the public would be ``adequately informed that cigarette smoking may be hazardous.`` But Congress also wanted to ensure that ``commerce and the national economy may be . . . protected to the maximum extent consistent with this declared policy`` and to keep states from enacting ``diverse, non-uniform and confusing cigarette labeling and advertising regulations`` about the dangers of smoking.

To serve this dual purpose, the law required one warning while banning all others. And it went further still, decreeing that ``no requirement or prohibition`` regarding health warnings could be imposed by any state. The Cippolone lawyers are reduced to the lame argument that state courts can dream up requirements that state legislatures may not, neatly defeating Congress`

purpose.

What Congress obviously had in mind was to make sure even the dimmest-witted Americans couldn`t remain ignorant of the well-established hazards of tobacco addiction-but to protect the right of smokers to smoke and of tobacco companies to supply them.

The people who have pressed suits against cigarette companies think that was a mistake. If they get their way in this case and others like it, as anti- smoking activist John Banzhaf of Action on Smoking and Health happily predicts, they may manage to ``bankrupt some tobacco companies.`` They may also make it impossible for anyone to market cigarettes in this country, to the detriment of people who willingly buy them.

In the unlikely event that the anti-smoking fanatics succeed, they will have used the courts to revoke a freedom that the American people, through their elected representatives, have explicitly chosen to protect. Their lawsuits are to democracy and liberty what tobacco smoke is to lungs.